from the Iowa District Court for Warren County, Richard B.
father appeals the custody order placing his two children in
the physical care of their mother.
D. Fisher of Fisher Law Firm, P.L.C., Urbandale, for
Jean Gibson, Newton, self-represented appellee.
Considered by Doyle, P.J., and Tabor and McDonald, JJ.
Mahedy and Amanda Gibson are the parents of N.G., now eleven
years old, and R.G., now three years old. After Brian brought
an action to establish custody under Iowa Code chapter 600B
(2015), the district court granted joint legal custody and
placed physical care with Amanda. On appeal, Brian asks this
court to assign physical care of the children to him.
Facts and Prior Proceedings
and Amanda engaged in an on-again-off-again relationship for
several years. N.G. was born in 2006. Although no formal
custodial agreement existed, Brian often exercised informal
visitation with N.G. on the weekends. Amanda had two children
from other relationships. Brian and Amanda reunited in 2013
and R.G. was born in 2014. When their relationship ended, the
children remained in Amanda's care.
sought a formal custodial agreement and filed a petition to
establish custody in August 2015. Brian and Amanda completed
mediation and agreed on a temporary custodial arrangement
giving Amanda physical care of the children and granting
Brian visitation every other weekend. Initially Brian
exercised his visitation without controversy, but the
situation changed when Amanda and the children moved to
Michigan. On March 25, 2016, Amanda requested visitation stop
because of concerning statements made by N.G. about
Brian's treatment of her and her brother. In April, the
district court denied the motion to suspend visitation. But
visitation did not resume, and Brian brought a contempt
action against Amanda.
series of delays, Brian's custody petition came to trial
in October 2016. In addition to Brian, Brian's mother and
sister, and Amanda's ex-husband testified in favor of
Brian's petition. Amanda, who did not have an attorney,
testified on her own behalf. The district court issued a
written decree granting Amanda physical care. The court
reasoned it was in the children's best interests to
remain in Amanda's care given her long history as their
primary caregiver. Because of the geographical distance
between parents, Brian was granted visitation on the second
weekend of each month and certain portions of holiday and
summer breaks. The court also ruled on Brian's contempt
motion, concluding Amanda prohibited visitation on twelve
weekends since she moved to Michigan. As a remedy, the court
granted Brian an additional consecutive fourteen days of
visitation during the upcoming summer break. Dissatisfied
with the court's ruling, Brian appeals and seeks physical
care of the children. Amanda did not file a timely
Scope and Standard of Review
review custody proceedings de novo. See Iowa R. App.
P. 6.907; Lambert v. Everist, 418 N.W.2d 40, 42
(Iowa 1988) (noting we use same legal analysis in custody as
dissolution proceedings). But "we give considerable
weight to the sound judgment of the trial court who has had
the benefit of hearing and observing the parties
firsthand." In re Marriage of Kleist, 538
N.W.2d 273, 278 (Iowa 1995).
primary concern is the best interests of N.G. and R.G.
See In re Marriage of Fennelly, 737 N.W.2d 97, 101
(Iowa 2007). When determining physical care, we are guided by
the factors established in Iowa Code section 598.41(3)
and In re Marriage of Winter, 223 N.W.2d 165, 166-67
(Iowa 1974). McKee v. Dicus, 785 N.W.2d 733, 737
(Iowa Ct. App. 2010). But because each family presents its
own strengths and ...